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Procedure:

In accordance withSection 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

Summary of Complainant’s Case:

The Complainant in this matter was a committed employee of the Respondent from June 1990 until June 2017. During the Complainant’s tenure, she was employed at a pharmaceutical site in Swords, County Dublin.

During the Complainant’s 27 years of service, she was solely based at the pharmaceutical company site in Swords. The Complainant had set hours and worked from 5am to 1pm, Monday to Thursday and from 5am to 12pm on Friday at an hourly rate of €11.15 per hour. The set hours the Complainant worked were very important in circumstances where she was responsible for collecting her grandson from school at 14.15hr, she then provided afterschool care for him.

The Complainant’s main responsibilities were cleaning toilets, locker rooms, offices, cleaning down at the factory floor and being responsible for the collecting of factory floor coats. The Complainant worked on the site from its opening in 1990 to its closure in 2017. She had built up an excellent working relationship there and was well regarded by staff. It is noted that the position which the Complainant held for 27 years involved her working alongside persons she was familiar with and was a position within a private company in a warehouse environment. The Complainant was entitled to use the free staff parking and was also provided with discounted vouchers for Cinema, Dublin Zoo, subsidised entry to staff outings, Parties and Christmas entertainment.

The Complainant worked the hours of 5am-1pm five days per week, each week and had done so since at least 2010. These hours were regular and fixed, having regard to personal circumstances and responsibility for collection of her grandchild.

The Respondent knew the site was closing for a considerable period of time pre its closure. Yet no attempts were made to consult with the Complainant regarding redundancy. This caused stress to the Complainant.

The Complainant attended a meeting with Ms A of the Respondent on 26 April 2017, during which she was informed that due to the proposed closure of the pharmaceutical site, her position was at risk of being made redundant with effect from 30 June 2017. This meeting was followed up with a letter dated 2 May 2017, informing the Complainant that a consultation process would now be undertaken by the Respondent, its servants and/or agents. The Complainant was informed that she would be looked after and it was likely a redundancy lump sum payment would be made to her. A

By letter dated 29 May 2017, the Complainant was invited to attend a consultation meeting with Ms.A Operations Manager. The consultation meeting took place on 31 May 2017. Ms. A conducted the consultation meeting and asked the Complainant if she could “advise how the respondent can assist with suitable relocation.” The Complainant was both specific and reasonable when making suggestions. As per the notes of the consultation meeting, the Complainant noted that she lives “at the Naul so Swords area would only be suitable”, however, she did not limit this area and agreed with Ms. A that Balbriggan would also be a suitable area. The Complainant was being reasonable in this regard.

Within the first consultation meeting, the Complainant outlined the importance of her working hours and highlighted her family commitments, stating:

“My hours are 5am-1pm. My grandson goes to school in Balbriggan & I collect him @ 14.15pm. My daughter-in-law doesn’t drive. I work 39 hrs. so these hrs only suit”

It is respectfully submitted that it was reasonable for the Complainant to suggest that the long-standing hours she had worked, and in fact, had moulded her life and commitments around would have to remain the same in order for any alternative position to be a viable option for her. It was also made clear from the outset.

By letter dated 6 June 2017, the Complainant was invited to a second consultation meeting with Ms A. This meeting took place on 19 June 2017. This meeting was to inform the Complainant of two alternative positions, which would later be the subject of letters dated 16 June 2017.

For the purpose of clarity, the Complainant received two letters in respect of alternative position offers. The first offer was as follows:

Site Location: Beaumont Hospital

Hours and days of Work: 8.30am – 16.30pm

Rate of Pay: €10.05

Start Date: Immediate Start

The details of the second alternative position was as follows:

Site Location: Pavillions Shopping Centre

Hours and days of Work: 6am – 14.00pm

Rate of Pay: €10.05

Start Date: Immediate Start

As noted within the notes of the consultation meeting of 19 June 2017, the Complainant again noted her concerns in respect of any potential alternative positions. The Complainant stated that Beaumont would not be an offer she could accept and in respect of the Pavillions, she stated that “I collect my grandson @ 14pm which I told you. Also my rate is €11.15 p/hour.” Therefore, the issues were the lower rate of pay, and the hours of work.

The Complainant was again clear and reasonable in respect of any proposed alternatives and the offers made were not equivalent to her established terms and conditions of employment. In response to the Complainant’s concerns, Ms A stated:

“The offer in Pavilions would be deemed a reasonable alternative as per Company Guidelines, so rejecting this would also deem you to not qualify for redundancy.”

Clearly Ms A was rigid in her view that the offers of alternative positions were reasonable. She was not prepared to countenance any submissions from the Complainant. In response to Ms A’s assertion that the Pavillion’s would be deemed reasonable as per Company Guidelines, the Complainant again highlighted that “I do 5 – 1pm so I won’t be doing 6am – 2pm. I cannot do it”. The Complainant also had issues with the rate of pay. Despite the objective and subjective reasonableness to the Complainant’s statement, Ms A again stated that “I know you have commitments outside of work. However, I’m sorry, refusing will not qualify you”.

By letter dated 20 June 2017, the Complainant was invited to a Final Consultation Meeting with Ms. A and Ms. B , HR Business Partner. It was again noted by the Respondent, its servants and/or agents that “a reasonable offer had been made and should you decline this offer you would not qualify for redundancy. The Final Consultation Meeting was held on 26 June 2017, having been postponed as the Complainant was too upset to attend at the original scheduled date.

In advance of the meeting, the Complainant’s representative from SIPTU trade union, was in contact with Ms B. It is clear from an email of 23 June 017 that Ms B had formed the view that the offer of the position in the Pavillions shopping centre was reasonable, in spite of the different hours of work each day.

The offer in respect of the position at the Pavillions was again put to the Complainant in the meeting of 26 June 2017. The Complainant responded by stating “I won’t be accepting this offer, too upset, different area”. The Complainant was asked if she was sure of her decision, to which she confirmed she was. She also outlined that it was a different work environment that that of the pharmaceutical company, being a shopping centre. In response to the Complainant stating she would not be able to accept the alternative offer, Ms B stated that a “Resignation, required in writing, if you can try to provide later today”.

As per the instructions of Ms B, after 27 years of dedicated service, the Complainant signed her letter of resignation dated 26 June 2017. This was dictated by the Respondent and the Complainant was informed that “she had to take the alternative job or resign. It was therefore a dismissal and not a resignation” The Complainant’s last day of employment was 30 June 2017.

By letter dated 29 June 2017, entitled “Site Closure Consultations – Outcome”, Ms B wrote to the Complainant and stated:

“During the meeting you advised that you would not be accepting the position as you could not work in a shopping centre environment. It was confirmed that the position was for the same days and hours of work with our same title, based in Swords which is the same location to pharmaceutical site and your terms and conditions would remain the same. If was advised that this was a reasonable alternative and should you not accept you would therefore be resigning from the company”

It is respectfully submitted that Ms B description of the events at the Final Consultation Meeting are simply wrong. The minutes of the meeting do not corroborate this description. What is clear from the minutes, and in fact, is a running theme from the start of the consultation period, is that the Complainant had consistently voiced her concerns with respect to any alternative positions. The Respondent was rigid in its approach by deeming the position at the Pavillions as being a suitable alternative. The alternative position offered by the Respondent, its servants and/or agents in the Pavillion Shopping Centre is fundamentally different and would have had a detrimental effect on the Complainant’s personal and professional life. The alternative position had: different working hours, with a finish time that would not have enabled the Complainant to collect her Grandson, the position was substantially different in that the Complainant would have been working in a public setting, the Complainant would not have been provided with parking facilities, as she had been in her previous position and would have had to have borne the cost of this and the rate of pay for the alternative position was a lower rate of pay. These concerns had been expressed by the Complainant from the first consultation meeting up to the termination of her employment. It is submitted that it was simply not reasonable for the Complainant to accept the alternative position.

The Complainant did not resign from her employment and rather her employment was terminated with effect from 30th June 2017. She was told by Ms B the write the letter of ‘resignation’ as directed by the Respondent and this is evident from the minutes of the meeting of 26 June 2017.

The Law:

The Complainant’s position as cleaning operative at the pharmaceutical company by ceased by reason of by virtue of the company closing this site. Section 7(1) of the Redundancy Payments Acts 1967-2015 (herein, the Acts) provides:

“An employee, if he is dismissed by his employer by reason of redundancy or laid off or kept on short time for a minimum period shall, subject to this Act, be entitled to a payment of monies which shall be known (and/or in this Act referred to) as a redundancy payment. . . “

Section 7(2)(a) of the Acts further provides that:

“. . . employee who is dismissed shall be taken to be dismissed by reason of redundancy, if for one or more of the reasons not related to the employee concerned the dismissal is attributed wholly or mainly to

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purpose for which the employee was employed by him, or has ceased or intends to cease, or carry on that business in the place where the employee was so employed.”

It is respectfully submitted that the accepted facts, namely that contract under which the Respondent provided cleaning services to the pharmaceutical site ceased-the contract on which the Complainant was employed worked for 27 years provides prima facie evidence of an entitlement to a statutory redundancy payment as prescribed by section 7 (2)(a) of the Redundancy Payments Acts 1967-2015.

The position of the Respondent in reality that, as the Complainant refused the offer of reasonable alternative employment from the Company, she is not entitled to any redundancy payment. The Respondent cannot couch it as a resignation by the Complainant as her position had ceased and she was directed to resign if she failed to take up an alternative position. This was a clear termination of employment.

Section 15(2) of the Acts provide a basis on which an employee is not entitled to a statutory redundancy payment:

“An employee who has received the notice required by section 17 shall not be entitled to redundancy payment if in the period of two weeks ending on the date of dismissal

a) His employer has made him in writing an offer to renew the employee’s contract of employment or re-engage him under a new contract of employment,

b) The provisions of the contract as renewed or of the new contract as to the capacity and place in which he would be employed and as to the other terms and conditions of employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before,

c) The offer constituting an offer of suitable employment in relation to the employee, and

d) The renewal or re-engagement would take effect not later than four weeks after the date of termination of his contract, and

e) He has unreasonably refused the offer”

It is respectfully submitted that the Respondent, its servants and/or agent’s interpretation of what is reasonable when considering an alternative position was erroneous. The offer was not on the same terms and conditions of employment, including the place of work, rate of work, type of work environment and hours of work and therefore the issue which arises is whether the position at the Pavillions Shopping Centre was suitable employment in relation to the employee. It is a well-established that when considering an alternative position offer, that the reasonableness of the employee’s decision must be look at two-fold. First, the offer made by the employer must be looked at objectively and, second, the decision of the employee must then be look at from a subjective stand-point. This position has been clearly set out in Employment Law, Second Edition at [19.123], where it states:

. . . the question of suitability may be determined objectively, whereas the reasonableness of the employee’s refusal is subjective and must be considered from the employee’s perspective. Thus the employee’s perception of the alternative job must be taken into account. In Executors of Everest v Cox it was found that:

The employee’s behaviour must be judged from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to her at the time the decision had to be made.

The English EAT case of Hudson v George Harrison ltd shows that the arbiter of fact, before making a decision on the reasonableness of an employee’s decision to refuse to take up an alternative position can look at the employee’s personal circumstances. Before quoting the above-mentioned quotation from Executors of Everest, the EAT stated that, “the s 141 (2) question involves taking into account the personal circumstances of the employee. The test is not wholly subjective, but it includes taking into account those personal circumstances”

The alternative position offered to the Complainant was not a viable alternative on an objective basis. The alternative position had different working hours, crucially a different finish time, the nature of the position was fundamentally different-including the work environment, the absence of unpaid car parking, the position involved a public element and the position was in a different geographical location. These changes clearly represent a change in the terms and conditions of the Complainant’s employment. As noted within Meehan’s Employment Law at [21-31], “an example of ‘different terms and conditions’ would be a change in location.” Therefore, the changes mentioned can only be seen as a substantial change in the Complainant’s position and employment which would have had a severe effect on her personal and professional life. In addition, in An Office Administrator v An Employer the Adjudication Officer-in considering whether a reasonable alternative position had been provided- examined whether “inconvenience” was placed upon the employee. Given the different in the location, absence of free parking, different hours, different work environment, the Complainant would be clearly inconvenienced by the alternative position which was not objectively reasonable. The Respondent put forward offers which were not on the same terms and condition of employment and were designed to unlawfully deny its obligation to discharge a redundancy lump sum payment to the Complainant.

If the AO is satisfied the position offered to the Complainant was reasonable, in assessing the Complainant’s refusal of the alternative position, it is submitted that the Complainant’s subjective view and personal circumstances must be taken into account. It has been shown that the Complainant’s personal circumstances were clearly outlined to the Respondent, its servants and/or agents at the earliest opportunity. The stark reality of the Complainant’s position is that she was in this position for 27 years, had built her life around her working conditions and her family relied on her ability to collect her grandson.

The Complainant will also rely on the case of Joyce v Duffy Meats Ltd t/a Kerry Foods where the EAT held that the employee had not been unreasonable in refusing three different alternative positions offered by the employer. In this case, two of the positions involved different hours than the employee had previously worked and the nature of the work was different in respect of the third position. It is submitted that the different hours the Complainant would have to work must be considered in the same manner as in the Joyce case. It is appreciated that the Respondent will suggest that the change in hours was, objectively, minor. However, it is the subjective nature and the impact on the Complainant which must be considered. The impact of the change in hours for this Complainant, however small, would have had a significant, adverse effect.

In the recent WRC decision in A Former Project Co-Ordinator v A Utility Services Company the Adjudication Officer, in finding that the employee had not been unreasonable in refusing an alternative position, considered the way in which such a case should be assessed:

“I must assess the factual matrix subjectively to determine whether the Complainant’s refusal . . . was reasonable. This requires consideration of the matter from the Complainant’s point of view taking into account the factors personal to him as outlined in his evidence above, to determine whether his refusal was a reasonable response.”

It is noted that the Adjudication Officer in the above-mentioned decision also quoted the English decision in Cambridge & District Co-operative Society Ltd -v- Ruse , a decision which the Complainant will also rely on. The AO in A Former Project Co-Ordinator held that:

“the English EAT has provided some useful guidance in relation to the appropriate test in Cambridge & District Co-operative Society Ltd -v- Ruse [1993] I.R.L.R. 156 at 158, when considering the similarly worded provisions of the British legislation, holding that the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”. In this respect, I note that the Irish employment fora have consistently applied a subjective test to the reasonableness of an employee’s refusal of alternative employment”.

Conclusion:

It is respectfully submitted that the Complainant is entitled to a redundancy lump sum payment pursuant to section 7 of the Redundancy Payments Acts 1967-2015 as her employment was ceased by reason of redundancy. The offer of an alternative position was not objectively reasonably and the Complainant was subjectively reasonable in refusing this offer.

It is therefore respectfully requested that the Adjudication Officer direct the Respondent to pay the Complainant her statutory redundancy payment based on her normal weekly wage of €381.65 and based on her continuous service from June 1990 until June 2017.

Summary of Respondent’s Case:

The respondent provides a range of facility services to clients on a contract basis. In this particular case the complainant was assigned to a pharmaceutical client , Swords, as a cleaner and carried out a range of cleaning duties as scheduled by the company. Her hours of work were from 5.00am – 1.00pm Mon – Thurs and 5.00am – 12.00 noon on a Friday

The respondent were advised by the pharmaceutical client that the site would be closing on the 30th June 2017. Everyone had been aware this was going to happen and it was only when we were given the final dates that we were in a position to enter into consultations with our employees regarding how this may affect them. The company commenced consultations with the employees on the 26th April 2017. The employees were advised that the pharmaceutical client was closing with effect from the 30th June 2017 and that it would be the company’s intention to have a number of consultations meetings with them, during which the company will look at alternative options for employees but where there are no reasonable alternative options, then there may be a risk of redundancy.

The company met with the complainant on the 23rd May 2017. Following this initial meeting a further consultation meeting took place on the 31st May 2017 with the Operations Manager.

At this meeting the Operations Manager advised the complainant the company was looking to find alternative employment for her rather than implementing redundancy as this was not the policy of the company. Fortunately for the complainant, because this was a Dublin based operation, the possibility of alternative employment was much greater than employees outside Dublin where there would be a limited number of contracts. The complainant indicated that she would like to remain in the Swords area.

Subsequent to this consultation meeting, the company wrote to the complainant on the 6th June 2017 inviting her to a further consultation meeting on the 19th June. Further correspondence was sent to the complainant on the 16th June 2017 identifying alternative positions for her. The positions that were offered were as follows;

- Beaumont Hospital – this position was Monday to Sunday and was five days a week from 8am – 4.30pm.

- The Pavilions Shopping Centre - this was a position from Monday to Thursday, 6am-2pm and from 6am-1pm on a Friday. This would have been similar to the shift pattern the complainant had in her former employment where she started at 5am and finished at 1pm.

It was also confirmed to her that her Terms and Conditions will remain the same so therefore there would be no loss of status or income. The complainant discussed these offers with the company at a meeting on the 19th June 2017 which took place with the Operations Manager. During the course of this meeting, the complainant indicated that she was not interested in Beaumont Hospital because the hours of work did not suit her. In relation to the Pavilions Shopping Centre the complainant indicated that she would not be willing to accept this as her shift started one hour later and she had to look after her grandson.

During the course of this meeting the complainant was advised that the alternative offer was a reasonable alternative position and, whilst one understood that she had personal arrangements, unfortunately the company was not in a position to always accommodate people’s personal arrangements when scheduling work.

The complainant was advised that as these offers were regarded as reasonable alternatives, particularly Pavilions Shopping Centre, if the complainant did not accept this alternative position then she would not be eligible for redundancy.

At the conclusion of this meeting it was agreed that a further meeting would take place on the 23rd June 2017.

Before the next meeting SIPTU contacted the company to discuss the closure and the alternative positions offered. SIPTU indicated the complainant’s preference would have been to be made redundant. He was advised that the company was not in a position to facilitate this as its primary objective is to retain staff in employment if at all possible. Also, in the case of the complainant, she was regarded as a valued member of the team and was someone whose skills and expertise they would like to retain. At SIPTU’s request the meeting was delayed until the 26th June when she met with a representative from HR and the Operations Manager.

During the course of this meeting the complainant made it very clear she was definitely not interested in Beaumont Hospital as it did not suit her personal arrangements and she was not interested in the Pavilion Shopping Centre opportunity either, even though the location was the same and the only difference would have been that she started one hour later in the day and finished one hour later.

During the course of this meeting the complainant was advised that as far as the company was concerned this was reasonable alternative employment and, in such circumstances, she would not be eligible to claim redundancy. The complainant accepted this and the meeting concluded with the complainants confirming that she would not be taking up either of the positions.

Subsequent to this meeting the complainant submitted her letter of resignation to the company which took effect from the 30th June 2017.

On receipt of this resignation the company wrote to the complainant a final outcome letter.

Under the Redundancy Payments Act, redundancy payments are only applicable where a persons’ position has been made redundant and there are no alterative opportunities in the company to continue working. In this regard the complainant was made aware of alternative opportunities, both in the area she had expressed a preference to work in, but chose not to accept either of those alternative options.

As is clear under Redundancy Payments Act a person is not eligible for redundancy were reasonable alternative employment has been offered. In this case these alternative employments had been offered to the complainant and therefore it was very clear that in such circumstances the complainant was not eligible to claim redundancy.

The Company’s policy is to try and find alternative employment for their employees rather than becoming involved with redundancies which is the primary objective of the Redundancy Payments Act and has been seen as an obligation of the employer when employers are accused of unfairly selecting employees for redundancy. In circumstances where an employee chooses not to make themselves available for alternative employment, as in this case, the complainant did so in the full knowledge that she was excluding herself from being eligible for redundancy. Regrettably the complainant did decide that she did not wish to reorganise her personal arrangements so that she could avoid losing her employment and instead made the conscious decision that she was going to cease working for the company even though the alternative work offered to her was in the same area where she had been working before and with the minimum of inconvenience.

In such circumstances we would be asking to find that the complainant is not entitled to seek to be paid redundancy payment from the company.

Conclusion and Findings

“Section 7 (1)An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.

Section 15 (2) An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal—

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before his dismissal,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of dismissal, and

(e) he has unreasonably refused the offer.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed..”

The test to be applied has both an objective element and subject element. I must firstly, objectively assess whether the offer of an alternative position was a reasonable one. If satisfied that it was reasonable, I must assess the complainant’s subjective view in relation to it, taking into account her personal circumstances. In Executors of Everest v Cox it was found that:

“The employee’s behaviour must be judged from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to her at the time the decision had to be made.”

Prior to the redundancy the complainant worked in the same role at the same premises for a period of 27 years and with the same hours since 2010. The complainant’s hours of work were important to her in circumstances where she was responsible for collecting her grandson from school at 14.15 hrs daily and minding him until his parents finished work. The nature of the role involved her cleaning private toilets, locker rooms, offices and cleaning down the factory floor and collecting factory floor coats. She had the use of the company private car park also. She was also entitled to discount vouchers for the cinema and Dublin zoo. The complainant made known to the respondent that her hours of work were a crucial factor in assessing any alternative role. The two alternative roles offered to the complainant did not have the hours of work that the complainant indicated were essential. The shopping centre role had hours 6am to 2pm. This did not suit the complainant due to her commitments to her grandson. Also, when the offer was made to the complainant on the 19th June, 2017 she was informed that the role attracted an hour rate of €10.05 which was less than the rate she was on at the pharmaceutical company. It is clear from the evidence that the respondent deemed the shopping centre role as a reasonable alternative. However, they did not consider the inconvenience that the hours of that role would have caused the complainant. An Office Administrator v An Employee inconvenience to the employee was a factor taken into consideration by the Adjudication Officer.

Based on the fact that the complainant made known to the respondent that her hours of work were crucial in relation to her consideration of any alternative role and that the hours of the alternative role offered would have caused the complainant great inconvenience and upset I find that it was reasonable for her, in all the circumstances to reject the offer.

I note that the respondent states that the complainant resigned her position when it became known to her that a suitable alternative was not available. I do not accept that the complainant voluntarily resigned her position. The complainant stated that she was told by the respondent “resignation, required in writing, if you can try and provide that today”. The respondent stated that the complainant was advised that if she did not accept the alternative position then she would not be eligible for redundancy. In doing so, they completely ignored the subjective element of the legal test. I accept the complainant’s evidence that she was told by the respondent that her resignation was necessary. The complainant was fully aware that her role was being made redundant and was fully aware that if an alternative role could not be found she would be eligible for a sizable redundancy payment. It flies in the face of common sense that in those circumstances she would voluntarily resign her position. I find that the respondent’s suggestion that her resignation was necessary in the circumstances to be under handed and an attempt to avoid their legal responsibilities in relation to her redundancy payment.

The claim succeeds. The complainant is entitled to a redundancy payment on the following basis:

Procedure:

In accordance withSection 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

Summary of Complainant’s Case:

The Complainant in this matter was a committed employee of the Respondent from June 1990 until June 2017. During the Complainant’s tenure, she was employed at a pharmaceutical site in Swords, County Dublin.

During the Complainant’s 27 years of service, she was solely based at the pharmaceutical company site in Swords. The Complainant had set hours and worked from 5am to 1pm, Monday to Thursday and from 5am to 12pm on Friday at an hourly rate of €11.15 per hour. The set hours the Complainant worked were very important in circumstances where she was responsible for collecting her grandson from school at 14.15hr, she then provided afterschool care for him.

The Complainant’s main responsibilities were cleaning toilets, locker rooms, offices, cleaning down at the factory floor and being responsible for the collecting of factory floor coats. The Complainant worked on the site from its opening in 1990 to its closure in 2017. She had built up an excellent working relationship there and was well regarded by staff. It is noted that the position which the Complainant held for 27 years involved her working alongside persons she was familiar with and was a position within a private company in a warehouse environment. The Complainant was entitled to use the free staff parking and was also provided with discounted vouchers for Cinema, Dublin Zoo, subsidised entry to staff outings, Parties and Christmas entertainment.

The Complainant worked the hours of 5am-1pm five days per week, each week and had done so since at least 2010. These hours were regular and fixed, having regard to personal circumstances and responsibility for collection of her grandchild.

The Respondent knew the site was closing for a considerable period of time pre its closure. Yet no attempts were made to consult with the Complainant regarding redundancy. This caused stress to the Complainant.

The Complainant attended a meeting with Ms A of the Respondent on 26 April 2017, during which she was informed that due to the proposed closure of the pharmaceutical site, her position was at risk of being made redundant with effect from 30 June 2017. This meeting was followed up with a letter dated 2 May 2017, informing the Complainant that a consultation process would now be undertaken by the Respondent, its servants and/or agents. The Complainant was informed that she would be looked after and it was likely a redundancy lump sum payment would be made to her. A

By letter dated 29 May 2017, the Complainant was invited to attend a consultation meeting with Ms.A Operations Manager. The consultation meeting took place on 31 May 2017. Ms. A conducted the consultation meeting and asked the Complainant if she could “advise how the respondent can assist with suitable relocation.” The Complainant was both specific and reasonable when making suggestions. As per the notes of the consultation meeting, the Complainant noted that she lives “at the Naul so Swords area would only be suitable”, however, she did not limit this area and agreed with Ms. A that Balbriggan would also be a suitable area. The Complainant was being reasonable in this regard.

Within the first consultation meeting, the Complainant outlined the importance of her working hours and highlighted her family commitments, stating:

“My hours are 5am-1pm. My grandson goes to school in Balbriggan & I collect him @ 14.15pm. My daughter-in-law doesn’t drive. I work 39 hrs. so these hrs only suit”

It is respectfully submitted that it was reasonable for the Complainant to suggest that the long-standing hours she had worked, and in fact, had moulded her life and commitments around would have to remain the same in order for any alternative position to be a viable option for her. It was also made clear from the outset.

By letter dated 6 June 2017, the Complainant was invited to a second consultation meeting with Ms A. This meeting took place on 19 June 2017. This meeting was to inform the Complainant of two alternative positions, which would later be the subject of letters dated 16 June 2017.

For the purpose of clarity, the Complainant received two letters in respect of alternative position offers. The first offer was as follows:

Site Location: Beaumont Hospital

Hours and days of Work: 8.30am – 16.30pm

Rate of Pay: €10.05

Start Date: Immediate Start

The details of the second alternative position was as follows:

Site Location: Pavillions Shopping Centre

Hours and days of Work: 6am – 14.00pm

Rate of Pay: €10.05

Start Date: Immediate Start

As noted within the notes of the consultation meeting of 19 June 2017, the Complainant again noted her concerns in respect of any potential alternative positions. The Complainant stated that Beaumont would not be an offer she could accept and in respect of the Pavillions, she stated that “I collect my grandson @ 14pm which I told you. Also my rate is €11.15 p/hour.” Therefore, the issues were the lower rate of pay, and the hours of work.

The Complainant was again clear and reasonable in respect of any proposed alternatives and the offers made were not equivalent to her established terms and conditions of employment. In response to the Complainant’s concerns, Ms A stated:

“The offer in Pavilions would be deemed a reasonable alternative as per Company Guidelines, so rejecting this would also deem you to not qualify for redundancy.”

Clearly Ms A was rigid in her view that the offers of alternative positions were reasonable. She was not prepared to countenance any submissions from the Complainant. In response to Ms A’s assertion that the Pavillion’s would be deemed reasonable as per Company Guidelines, the Complainant again highlighted that “I do 5 – 1pm so I won’t be doing 6am – 2pm. I cannot do it”. The Complainant also had issues with the rate of pay. Despite the objective and subjective reasonableness to the Complainant’s statement, Ms A again stated that “I know you have commitments outside of work. However, I’m sorry, refusing will not qualify you”.

By letter dated 20 June 2017, the Complainant was invited to a Final Consultation Meeting with Ms. A and Ms. B , HR Business Partner. It was again noted by the Respondent, its servants and/or agents that “a reasonable offer had been made and should you decline this offer you would not qualify for redundancy. The Final Consultation Meeting was held on 26 June 2017, having been postponed as the Complainant was too upset to attend at the original scheduled date.

In advance of the meeting, the Complainant’s representative from SIPTU trade union, was in contact with Ms B. It is clear from an email of 23 June 017 that Ms B had formed the view that the offer of the position in the Pavillions shopping centre was reasonable, in spite of the different hours of work each day.

The offer in respect of the position at the Pavillions was again put to the Complainant in the meeting of 26 June 2017. The Complainant responded by stating “I won’t be accepting this offer, too upset, different area”. The Complainant was asked if she was sure of her decision, to which she confirmed she was. She also outlined that it was a different work environment that that of the pharmaceutical company, being a shopping centre. In response to the Complainant stating she would not be able to accept the alternative offer, Ms B stated that a “Resignation, required in writing, if you can try to provide later today”.

As per the instructions of Ms B, after 27 years of dedicated service, the Complainant signed her letter of resignation dated 26 June 2017. This was dictated by the Respondent and the Complainant was informed that “she had to take the alternative job or resign. It was therefore a dismissal and not a resignation” The Complainant’s last day of employment was 30 June 2017.

By letter dated 29 June 2017, entitled “Site Closure Consultations – Outcome”, Ms B wrote to the Complainant and stated:

“During the meeting you advised that you would not be accepting the position as you could not work in a shopping centre environment. It was confirmed that the position was for the same days and hours of work with our same title, based in Swords which is the same location to pharmaceutical site and your terms and conditions would remain the same. If was advised that this was a reasonable alternative and should you not accept you would therefore be resigning from the company”

It is respectfully submitted that Ms B description of the events at the Final Consultation Meeting are simply wrong. The minutes of the meeting do not corroborate this description. What is clear from the minutes, and in fact, is a running theme from the start of the consultation period, is that the Complainant had consistently voiced her concerns with respect to any alternative positions. The Respondent was rigid in its approach by deeming the position at the Pavillions as being a suitable alternative. The alternative position offered by the Respondent, its servants and/or agents in the Pavillion Shopping Centre is fundamentally different and would have had a detrimental effect on the Complainant’s personal and professional life. The alternative position had: different working hours, with a finish time that would not have enabled the Complainant to collect her Grandson, the position was substantially different in that the Complainant would have been working in a public setting, the Complainant would not have been provided with parking facilities, as she had been in her previous position and would have had to have borne the cost of this and the rate of pay for the alternative position was a lower rate of pay. These concerns had been expressed by the Complainant from the first consultation meeting up to the termination of her employment. It is submitted that it was simply not reasonable for the Complainant to accept the alternative position.

The Complainant did not resign from her employment and rather her employment was terminated with effect from 30th June 2017. She was told by Ms B the write the letter of ‘resignation’ as directed by the Respondent and this is evident from the minutes of the meeting of 26 June 2017.

The Law:

The Complainant’s position as cleaning operative at the pharmaceutical company by ceased by reason of by virtue of the company closing this site. Section 7(1) of the Redundancy Payments Acts 1967-2015 (herein, the Acts) provides:

“An employee, if he is dismissed by his employer by reason of redundancy or laid off or kept on short time for a minimum period shall, subject to this Act, be entitled to a payment of monies which shall be known (and/or in this Act referred to) as a redundancy payment. . . “

Section 7(2)(a) of the Acts further provides that:

“. . . employee who is dismissed shall be taken to be dismissed by reason of redundancy, if for one or more of the reasons not related to the employee concerned the dismissal is attributed wholly or mainly to

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purpose for which the employee was employed by him, or has ceased or intends to cease, or carry on that business in the place where the employee was so employed.”

It is respectfully submitted that the accepted facts, namely that contract under which the Respondent provided cleaning services to the pharmaceutical site ceased-the contract on which the Complainant was employed worked for 27 years provides prima facie evidence of an entitlement to a statutory redundancy payment as prescribed by section 7 (2)(a) of the Redundancy Payments Acts 1967-2015.

The position of the Respondent in reality that, as the Complainant refused the offer of reasonable alternative employment from the Company, she is not entitled to any redundancy payment. The Respondent cannot couch it as a resignation by the Complainant as her position had ceased and she was directed to resign if she failed to take up an alternative position. This was a clear termination of employment.

Section 15(2) of the Acts provide a basis on which an employee is not entitled to a statutory redundancy payment:

“An employee who has received the notice required by section 17 shall not be entitled to redundancy payment if in the period of two weeks ending on the date of dismissal

a) His employer has made him in writing an offer to renew the employee’s contract of employment or re-engage him under a new contract of employment,

b) The provisions of the contract as renewed or of the new contract as to the capacity and place in which he would be employed and as to the other terms and conditions of employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before,

c) The offer constituting an offer of suitable employment in relation to the employee, and

d) The renewal or re-engagement would take effect not later than four weeks after the date of termination of his contract, and

e) He has unreasonably refused the offer”

It is respectfully submitted that the Respondent, its servants and/or agent’s interpretation of what is reasonable when considering an alternative position was erroneous. The offer was not on the same terms and conditions of employment, including the place of work, rate of work, type of work environment and hours of work and therefore the issue which arises is whether the position at the Pavillions Shopping Centre was suitable employment in relation to the employee. It is a well-established that when considering an alternative position offer, that the reasonableness of the employee’s decision must be look at two-fold. First, the offer made by the employer must be looked at objectively and, second, the decision of the employee must then be look at from a subjective stand-point. This position has been clearly set out in Employment Law, Second Edition at [19.123], where it states:

. . . the question of suitability may be determined objectively, whereas the reasonableness of the employee’s refusal is subjective and must be considered from the employee’s perspective. Thus the employee’s perception of the alternative job must be taken into account. In Executors of Everest v Cox it was found that:

The employee’s behaviour must be judged from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to her at the time the decision had to be made.

The English EAT case of Hudson v George Harrison ltd shows that the arbiter of fact, before making a decision on the reasonableness of an employee’s decision to refuse to take up an alternative position can look at the employee’s personal circumstances. Before quoting the above-mentioned quotation from Executors of Everest, the EAT stated that, “the s 141 (2) question involves taking into account the personal circumstances of the employee. The test is not wholly subjective, but it includes taking into account those personal circumstances”

The alternative position offered to the Complainant was not a viable alternative on an objective basis. The alternative position had different working hours, crucially a different finish time, the nature of the position was fundamentally different-including the work environment, the absence of unpaid car parking, the position involved a public element and the position was in a different geographical location. These changes clearly represent a change in the terms and conditions of the Complainant’s employment. As noted within Meehan’s Employment Law at [21-31], “an example of ‘different terms and conditions’ would be a change in location.” Therefore, the changes mentioned can only be seen as a substantial change in the Complainant’s position and employment which would have had a severe effect on her personal and professional life. In addition, in An Office Administrator v An Employer the Adjudication Officer-in considering whether a reasonable alternative position had been provided- examined whether “inconvenience” was placed upon the employee. Given the different in the location, absence of free parking, different hours, different work environment, the Complainant would be clearly inconvenienced by the alternative position which was not objectively reasonable. The Respondent put forward offers which were not on the same terms and condition of employment and were designed to unlawfully deny its obligation to discharge a redundancy lump sum payment to the Complainant.

If the AO is satisfied the position offered to the Complainant was reasonable, in assessing the Complainant’s refusal of the alternative position, it is submitted that the Complainant’s subjective view and personal circumstances must be taken into account. It has been shown that the Complainant’s personal circumstances were clearly outlined to the Respondent, its servants and/or agents at the earliest opportunity. The stark reality of the Complainant’s position is that she was in this position for 27 years, had built her life around her working conditions and her family relied on her ability to collect her grandson.

The Complainant will also rely on the case of Joyce v Duffy Meats Ltd t/a Kerry Foods where the EAT held that the employee had not been unreasonable in refusing three different alternative positions offered by the employer. In this case, two of the positions involved different hours than the employee had previously worked and the nature of the work was different in respect of the third position. It is submitted that the different hours the Complainant would have to work must be considered in the same manner as in the Joyce case. It is appreciated that the Respondent will suggest that the change in hours was, objectively, minor. However, it is the subjective nature and the impact on the Complainant which must be considered. The impact of the change in hours for this Complainant, however small, would have had a significant, adverse effect.

In the recent WRC decision in A Former Project Co-Ordinator v A Utility Services Company the Adjudication Officer, in finding that the employee had not been unreasonable in refusing an alternative position, considered the way in which such a case should be assessed:

“I must assess the factual matrix subjectively to determine whether the Complainant’s refusal . . . was reasonable. This requires consideration of the matter from the Complainant’s point of view taking into account the factors personal to him as outlined in his evidence above, to determine whether his refusal was a reasonable response.”

It is noted that the Adjudication Officer in the above-mentioned decision also quoted the English decision in Cambridge & District Co-operative Society Ltd -v- Ruse , a decision which the Complainant will also rely on. The AO in A Former Project Co-Ordinator held that:

“the English EAT has provided some useful guidance in relation to the appropriate test in Cambridge & District Co-operative Society Ltd -v- Ruse [1993] I.R.L.R. 156 at 158, when considering the similarly worded provisions of the British legislation, holding that the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”. In this respect, I note that the Irish employment fora have consistently applied a subjective test to the reasonableness of an employee’s refusal of alternative employment”.

Conclusion:

It is respectfully submitted that the Complainant is entitled to a redundancy lump sum payment pursuant to section 7 of the Redundancy Payments Acts 1967-2015 as her employment was ceased by reason of redundancy. The offer of an alternative position was not objectively reasonably and the Complainant was subjectively reasonable in refusing this offer.

It is therefore respectfully requested that the Adjudication Officer direct the Respondent to pay the Complainant her statutory redundancy payment based on her normal weekly wage of €381.65 and based on her continuous service from June 1990 until June 2017.

Summary of Respondent’s Case:

The respondent provides a range of facility services to clients on a contract basis. In this particular case the complainant was assigned to a pharmaceutical client , Swords, as a cleaner and carried out a range of cleaning duties as scheduled by the company. Her hours of work were from 5.00am – 1.00pm Mon – Thurs and 5.00am – 12.00 noon on a Friday

The respondent were advised by the pharmaceutical client that the site would be closing on the 30th June 2017. Everyone had been aware this was going to happen and it was only when we were given the final dates that we were in a position to enter into consultations with our employees regarding how this may affect them. The company commenced consultations with the employees on the 26th April 2017. The employees were advised that the pharmaceutical client was closing with effect from the 30th June 2017 and that it would be the company’s intention to have a number of consultations meetings with them, during which the company will look at alternative options for employees but where there are no reasonable alternative options, then there may be a risk of redundancy.

The company met with the complainant on the 23rd May 2017. Following this initial meeting a further consultation meeting took place on the 31st May 2017 with the Operations Manager.

At this meeting the operations manager advised the complainant the company was looking to find alternative employment for her rather than implementing redundancy as this was not the policy of the company. Fortunately for the complainant, because this was a Dublin based operation, the possibility of alternative employment was much greater than employees outside Dublin where there would be a limited number of contracts. The complainant indicated that she would like to remain in the Swords area.

Subsequent to this consultation meeting the company wrote to the complainant on the 6th June 2017 inviting her to a further consultation meeting on the 19th June. Further correspondence was sent to the complainant on the 16th June 2017 identifying alternative positions for her. The positions that were offered were as follows;

- Beaumont Hospital – this position was Monday to Sunday and was five days a week from 8am – 4.30pm.

- The Pavilions Shopping Centre - this was a position from Monday to Thursday, 6am-2pm and from 6am-1pm on a Friday. This would have been similar to the shift pattern the the complainant had in her former employment where she started at 5am and finished at 1pm.

It was also confirmed to her that her Terms and Conditions will remain the same so therefore there would be no loss of status or income. The complainant discussed these offers with the company at a meeting on the 19th June 2017 which took place with The operations manager.. During the course of this meeting the complainant indicated that she was not interested in Beaumont Hospital because the hours of work did not suit her. In relation to the Pavilions Shopping Centre the complainant indicated that she would not be willing to accept this as her shift started one hour later and she had to look after her grandson.

During the course of this meeting the complainant was advised that the alternative offer was a reasonable alternative position and, whilst one understood that she had personal arrangements, unfortunately the company was not in a position to always accommodate people’s personal arrangements when scheduling work.

The complainant was advised that as these offers were regarded as reasonable alternatives, particularly Pavilions Shopping Centre, if the complainant did not accept this alternative position then she would not be eligible for redundancy.

At the conclusion of this meeting it was agreed that a further meeting would take place on the 23rd June 2017.

Before the next meeting SIPTU contacted the company to discuss the closure and the alternative positions offered. SIPTU indicated the complainant’s preference would have been to be made redundant. He was advised that the company was not in a position to facilitate this as its primary objective is to retain staff in employment if at all possible. Also, in the case of the complainant, she was regarded as a valued member of the team and was someone whose skills and expertise they would like to retain. At SIPTU’s request the meeting was delayed until the 26th June when she met with a representative from HR and the Operations Manager.

During the course of this meeting the complainant made it very clear she was definitely not interested in Beaumont Hospital as it did not suit her personal arrangements and she was not interested in the Pavilion Shopping Centre opportunity either, even though the location was the same and the only difference would have been that she started one hour later in the day and finished one hour later.

During the course of this meeting the complainant was advised that as far as the company was concerned this was reasonable alternative employment and, in such circumstances, she would not be eligible to claim redundancy. The complainant accepted this and the meeting concluded with the complainants confirming that she would not be taking up either of the positions.

Subsequent to this meeting the complainant submitted her letter of resignation to the company which took effect from the 30th June 2017.

On receipt of this resignation the company wrote to the complainant a final outcome letter.

Under the Redundancy Payments Act, redundancy payments are only applicable where a persons’ position has been made redundant and there are no alterative opportunities in the company to continue working. In this regard the complainant was made aware of alternative opportunities, both in the area she had expressed a preference to work in, but chose not to accept either of those alternative options.

As is clear under Redundancy Payments Act a person is not eligible for redundancy were reasonable alternative employment has been offered. In this case these alternative employments had been offered to the complainant and therefore it was very clear that in such circumstances the complainant was not eligible to claim redundancy.

The Company’s policy is to try and find alternative employment for their employees rather than becoming involved with redundancies which is the primary objective of the Redundancy Payments Act and has been seen as an obligation of the employer when employers are accused of unfairly selecting employees for redundancy. In circumstances where an employee chooses not to make themselves available for alternative employment, as in this case, the complainant did so in the full knowledge that she was excluding herself from being eligible for redundancy. Regrettably the complainant did decide that she did not wish to reorganise her personal arrangements so that she could avoid losing her employment and instead made the conscious decision that she was going to cease working for the company even though the alternative work offered to her was in the same area where she had been working before and with the minimum of inconvenience.

In such circumstances we would be asking to find that the complainant is not entitled to seek to be paid redundancy payment from the company.

Conclusion and Findings

“Section 7 (1)An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.

Section 15 (2) An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal—

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before his dismissal,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of dismissal, and

(e) he has unreasonably refused the offer.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed..”

The test to be applied has both an objective element and subject element. I must firstly, objectively assess whether the offer of an alternative position was a reasonable one. If satisfied that it was reasonable, I must assess the complainant’s subjective view in relation to it, taking into account her personal circumstances. In Executors of Everest v Cox it was found that:

“The employee’s behaviour must be judged from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to her at the time the decision had to be made.”

Prior to the redundancy the complainant worked in the same role at the same premises for a period of 27 years and with the same hours since 2010. The complainant’s hours of work were important to her in circumstances where she was responsible for collecting her grandson from school at 14.15 hrs daily and minding him until his parents finished work. The nature of the role involved her cleaning private toilets, locker rooms, offices and cleaning down the factory floor and collecting factory floor coats. She had the use of the company private car park also. She was also entitled to discount vouchers for the cinema and Dublin zoo. The complainant made known to the respondent that her hours of work were a crucial factor in assessing any alternative role. The two alternative roles offered to the complainant did not have the hours of work that the complainant indicated were essential. The shopping centre role had hours 6am to 2pm. This did not suit the complainant due to her commitments to her grandson. Also, when the offer was made to the complainant on the 19 June, 2017 she was informed that the role attracted an hour rate of €10.05 which was less than the rate she was on at the pharmaceutical company. It is clear from the evidence that the respondent deemed the shopping centre role as a reasonable alternative. However, they did not consider the inconvenience that the hours of that role would have caused the complainant. An Office Administrator v An Employee inconvenience to the employee was a factor taken into consideration by the Adjudication Officer.

Based on the fact that the complainant made known to the respondent that her hours of work were crucial in relation to her consideration of any alternative role and that the hours of the alternative role offered would have caused the complainant great inconvenience and upset I find that it was reasonable for her, in all the circumstances to reject the offer.

I note that the respondent states that the complainant resigned her position when it became known to her that a suitable alternative was not available. I do not accept that the complainant voluntarily resigned her position. The complainant stated that she was told by the respondent “resignation, required in writing, if you can try and provide that today”. The respondent stated that the complainant was advised that if she did not accept the alternative position then she would not be eligible for redundancy. In doing so, they completely ignored the subjective element of the legal test. I accept the complainant’s evidence that she was told by the respondent that her resignation was necessary. The complainant was fully aware that her role was being made redundant and was fully aware that if an alternative role could not be found she would be eligible for a sizable redundancy payment. It flies in the face of common sense that in those circumstances she would voluntarily resign her position. I find that the respondent’s suggestion that her resignation was necessary in the circumstances to be under handed and an attempt to avoid their legal responsibilities in relation to her redundancy payment.

The claim succeeds. The complainant is entitled to a redundancy payment on the following basis: